United States v. Hardage

No. CIV-86-1401-W (W.D. Okla. December 11, 1986)

The court holds that the provision of the Superfund Amendments and Reauthorization Act restricting judicial review of issues related to the appropriate remedy at hazardous waste sites to the administrative record does not apply to claims for injunctive relief under § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act or where the government seeks injunctive relief under § 7003 of the Resource Conservation and Recovery Act. The court holds that the new administrative record provisions do not apply because the Environmental Protection Agency (EPA) chose to file suit without having taken any administrative action. Further, EPA has not taken any administrative action reasonably calculated to yield an administrative record. The court next holds that defendants are entitled to a de novo review of any remedy proposed by EPA. Since any EPA action concerning the remedy constitutes informal adjudication, defendants must be afforded all due process rights with respect to such action, including the opportunity for adequate discovery. The court therefore denies the federal government's motion for aprotective order limiting the scope of defendant's deposition of two EPA contractors involved in the scientific evaluation of the site.

[Defendant's brief in opposition to the government's motion for a protective order is digested at ELR PEND. LIT. 65937.]

Counsel for Plaintiff
Steven Mullins, Ass't U.S. Attorney
4434 U.S. Cthse., Oklahoma City OK 73102
(405) 231-5281

Counsel for Defendants
Robert Tomlinson
McKinney, Stringer & Webster
8th Fl., City Center Bldg., Main & Broadway, Oklahoma City OK 73102
(405) 239-6444

[17 ELR 20242]

West, J.:

Order

Plaintiff, United States of America, moves this Court for a protective order limiting the scope of examination of certain contracting agents of the United States Environmental Protection Agency, noticed by defendants for deposition pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure.

The deposition notices were sent to two Environmental Protection Agency (hereinafter "EPA") contractors who were employed by EPA to assist in the scientific evaluation of the hazardous waste site which is the subject of the instant cause of action. These contractors assisted EPA in preparation of technical and scientific plans and protocols for the site study, compilation of resulting chemical, geological, and hydrogeological data, and also provided analyses of that data. The Government states in its brief in support of its Motion for a Protective Order that these contractors' analyses formed the foundation for technical and policy decisions made within EPA, as to the preferred remedial scheme to abate the imminent and substantial endangerment presented by the Hardage site. The United States argues such remedial decisions are part of the administrative process contemplated by the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 C.F.R. Part 300, 50 Fed. Reg. No. 224, p. 17912 (Nov. 20, 1985). Defendant further argues this Court's review of any remedial decisions must be based on the administrative record, provided to this Court by EPA. However, the Government admits that presently, the EPA has not certified an administrative record in the instant action.

The Government's argument the new Superfund Amendments and Reauthorization Act of 1986 (the "1986 Amendments") restrict judicial review of issues related to the appropriate remedy for the Hardage site to an administrative record, and thus necessarily limit questions which may be asked at depositions, ignores the fact the Government seeks mandatory injunctive relief under § 7003 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6973, to compel defendants to perform a remedy at the Hardage site. Section 7003 claims must be resolved in traditional trials by federal district courts after full discovery. In fact, as defendants state in their brief in opposition to plaintiff's Motion for Protective Order, p. 4 there are no reported cases in which a court confined its review of a RCRA § 7003 claim to an administrative record. Instead, courts consistently have decided such claims independently, allowing discovery, and imposing the burden of proof at trial on the Government. See, e.g., United States v. Waste Industries, Inc., 734 F.2d 159, 168 [14 ELR 20461] (4th Cir. 1984); United States v. Price, 688 F.2d 204, 208, 211, 214-215 [12 ELR 21020] (3d Cir. 1982); United States v. Conservation Chemical Co., 106 F.R.D. 210, 214-216, 235 [16 ELR 20193] (W.D. Mo. 1985); 40 C.F.R. §§ 264.4, 265.4 (1986) (§ 7003 actions are not limited by substantive requirements of RCRA regulations).

Similarly, § 106 injunction claims, pursuant to § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9606 ("CERCLA" or "the Superfund statute"), also must be resolved in traditional trials by federal district courts after full discovery. Therefore, the Government's interpretation of the 1986 Amendments is incorrect. The new administrative record review provisions of said amendments are inapplicable to the Government's injunction claims under § 106.

Claims for injunctive relief pursuant to § 106 are not based upon an administrative record. In CERCLA cases in which the Government has sought relief pursuant to this section, courts have structured the proceedings to provide complete discovery and a full trial on both remedy and liability issues. See e.g., United States v. Conservation Chemical Corp., 106 F.R.D. 210, 214-216 [16 ELR 20193] (W.D. Mo. 1985); United States v. Vertac Chemical Corp., 588 F. Supp. 1294, 1295 [15 ELR 20002] (E.D. Ark. 1984).

This Court finds the new administrative record provisions do not apply to the instant case because EPA did not follow an administrative process to implement a remedy for the Hardage site. As defendant Oklahoma National Stockyards Company articulates [17 ELR 20243] in its response to the United States Motion for a Protective Order, p. 3, "judicial review of agency action, whatever may be the center of review, is not involved here." The only agency action involved is EPA's action in filing the instant cause of action, whereupon EPA placed adjudication of all issues under the jurisdiction of this Court. Therefore, EPA cannot cite authorities which involve judicial review after administrative decision and action has first been taken and thereby attempt to limit this Court's power to decide the issues in accordance with traditional principles of equity jurisdiction.

This Court further finds EPA failed to take any administrative action reasonably calculated to yield an administrative record to which this Court would be bound in the instant litigation. In fact, EPA has not determined the exact nature of remedial measures to be taken, in the event this Court grants its requested injunctive relief.

The Government argues the standard and scope of review for EPA selection of response actions is the arbitrary and capricious standard, citing United States v. Ward, 618 F. Supp. 884, 900 [16 ELR 20127] (E.D.N.C. 1986); United States v. Western Processing Co., No. C-83-252-M (W.D. Wash. Feb. 19, 1986) in its brief to support this proposition. Government Brief at p. 6. However, in Western, supra, the decision in question was not the remedy itself, but EPA's decision to implement a Fund-financed remedy in lieu of seeking a mandatory injunction under § 106 of CERCLA. In Ward, supra, the court held the "arbitrary and capricious" standard of review may apply to EPA remedy selections in cases where EPA spends Superfund monies to implement the remedy and subsequently files suit pursuant to § 107 of CERCLA to recover costs. In the case at bar, EPA did not spend Superfund monies to implement a remedy, prior to the filing of this action. In fact, courts in injunction actions must decide remedy issues independently. See, e.g., United States v. Reilly Tar and Chemical Co., 606 F. Supp. 412 [15 ELR 20348] (D. Minn. 1985). Therefore, this Court believes defendants are entitled to a de novo review of any suggested remedy by the EPA at the Hardage site, and notes any EPA action in the instant case as to a selected remedy constitutes informal adjudication, as it involves the "determination of contested facts in applying rules to specific circumstances." United States v. Independent Boat Transport, Inc., 480 F. Supp. 474, 478 (S.D.N.Y. 1979). As informal adjudication, the Administrative Procedures Act is inapplicable, and defendants must be afforded all due process rights with regard to any decisions made by EPA in its informal adjudication. If this Court were to deny defendants adequate discovery methods and procedures, this Court would effectively deny these defendants their rights to due process, in the case at bar.

Accordingly, it is hereby ORDERED that defendant, United States, Motion for Protective Order vacating in part and limiting in part, defendant's deposition notices filed pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure is hereby DENIED.